Despite any differences between Prime Minister Rishi Sunak and his former Home Secretary Suella Braverman, they both keyed into a crucial aspect of the inability of the United Kingdom to control immigration effectively. In her speech in Washington D.C. in September 2023, prior to her departure from office, Braverman referred to the need to “start a conversation” around reforming the Refugee Convention of 1951. She also castigated the “luxury beliefs” of ivory tower critics who declare as immoral those concerned about illegal immigration. Referring to the need to break from the consensus dealing with migrants arriving by irregular means, Sunak used his speech in Rome to state that his host, Prime Minister Giorgia Meloni and he were agreed to work on changing international rules that got in the way: “If that requires us to update our laws and lead an international conversation to amend postwar frameworks around asylum, then we must do that.”
Their speeches are not directed at genuine refugees. They have overseen the admission of those at risk of persecution from Hong Kong and Afghanistan and even those fleeing the war in Ukraine, which arguably goes well beyond any obligations imposed by the Refugee Convention. So why advocate revision of the “postwar frameworks around asylum” of which the Refugee Convention has been a key component?
That convention was framed within the United Nations in a very different world. Of foremost concern then were those displaced in Europe because of the Second World War. The convention also drew into itself those protected by the earlier arrangements made in the 1920s and 1930s. Not being forward-looking, it meant to diminish the legal disabilities experienced by those who had already been displaced prior to January 1st 1951, its so-called dateline. The United Kingdom was a key sponsor, encouraging states to adopt a big-hearted attitude and recognise refugees from wherever they came, not merely those from Europe, and to accord treatment to refugees more generous than its literal provisions.
The convention became more relevant only after its protocol of 1967, which obliged newly acceding states not to apply the dateline or the geographical limitation to Europe and to effectively ensure the recognition of refugees prospectively, that is, to those not yet in being. Here lay the seed for the eventual questioning of the convention-protocol system and its potential demise. At the time, the chief aim of its promoters – a group of influential Western countries – was to ensure that the High Commissioner for Refugees had a solid treaty-based mandate to organise the protection of refugees outside of Europe. Unlike in Europe, where the main issue was, as noted, the removal of legal disabilities that might otherwise be imposed on foreigners, refugee situations elsewhere demanded humanitarian missions.
The protocol thus embedded the UNHCR’s position as the major aid-distributing agency it became in subsequent decades. In 1969, African countries supplemented the protocol by the OAU Convention on Refugees, that added an even broader commitment to allow UNHCR to intervene in refugee situations. It is only African countries which accepted such a wide ceding of sovereignty to the UNHCR. Why that happened is a subject yet to be investigated properly, but the prevailing context in which European powers were losing ground in Africa, while the contending Cold War superpowers were filling in the geopolitical space, partly explains why emphasis on humanitarian missions backed with Western funding became a preferred model to be applied in future hot wars. It was not coincidental that the United States, which had remained out of the Refugee Convention, became an eager sponsor of the protocol.
At that point, there was little if any movement to the West from the main refugee-producing regions. This began to change in the 1970s, became unignorable by the 1980s and has been expanding ever since. This is when a variety of Western countries began to put into place refugee recognition mechanisms, rejection from which attracted legal challenges. The law and its manner of dealing with refugee protection took priority for these countries and became a subject of continual adjustment. Especially from a non-Western perspective, the mass intervention of lawyers to protect refugees seems a sort of counterintuitive “luxury belief”.
A clear split became visible between the Western and non-Western approaches. Refugee-receiving countries in the latter group were hardly in a position to impose strict border controls or apply sophisticated legal mechanisms. Other than the African countries, they also objected to being placed under international legal obligations but made do with humanitarian aid and whatever resettlement plans the UNHCR or other countries were offering. Along with other states in the South Asian region, Prof. Bimal Patel’s account shows that India has perhaps quite wisely stayed out of the international bind of the convention-protocol system. Some others in Asia, including Japan (1982), China (1982) and South Korea (1992) have been acceding to the convention-protocol but not necessarily moving their own legal systems to handle large numbers of asylum claims. The small measure of international respectability accession conferred has now all but evaporated as the international order becomes more complicated, unpredictable and less susceptible to the demands of Western countries.
The Western rule-of-law states meanwhile became even more dug-in to their preferred approach, resulting in contradictions. The idea of revising the convention-protocol system is not new; it was aired in 1998 when Austria held the EU Presidency, but that discussion was since buried. States of the former Soviet Bloc and former Yugoslavia who became prospective members of the European Union were compelled to adopt refugee recognition procedures with legal guarantees. The EU has even formalised its adherence to the convention-protocol system in its own governing treaty, making departure from its constraints a more challenging prospect. Governments have struggled with the courts to reduce their obligations and remain compliant with the convention-protocol. While being an everyday feature of litigation, it was most dramatically demonstrated in the recent U.K. Supreme Court judgment concerning onward removals to Rwanda.
Minimally, states have to offer migrants some means of having their asylum applications assessed and remaining in the country while they wait. Limits to resources and the waiting periods demanded by the legal process mean that this can be dragged out, especially when the administrative burdens become significant. Undeniably, many who use the asylum procedure would never have qualified but use it to gain enough traction to enable them to stay on. ‘Lawfare’ litigation – a sort of politics played by legal means – such as that used against the Rwanda plan adds further burdens on the state trying to manoeuvre policy into a workable mode.
The British case shows signs of administrative resistance to political direction, even when democratic mandates have authorised stricter controls, something which is probably replicated elsewhere in Western countries. The overwhelming reliance on the rule-of-law model has backfired badly. States often end up with de facto resident populations whom they would not have otherwise selected, whose net societal contributions at best remain vague, whom they cannot expel and whose presence spurs the subsequent arrival of others in their networks.
Western countries have become stuck with the downside of their rule-of-law models and their inability to police borders effectively. The United Kingdom has joined Mediterranean and Aegean countries, which have a porous water border, whereas the United States currently offers an example where the political gumption to police land borders has evaporated. Turkey, Russia and Belarus have used their ‘migration diplomacy’ against countries to their west by lifting the lid on onward migrants.
Public impatience with respect to porous borders, the ineffectual nature of controls, compromise of selectivity and difficulties with sociability exacerbate conflicts. Trust in conventional politics is eroding and the Western drift is palpably towards putting those in charge who at least promise stronger controls, even if they may not live up to it. As Braverman had said already, pro-migration elites have to cope the least with the consequences of their “luxury beliefs”.
Rishi Sunak and others evidently understand that the legal space for manoeuvre is very limited if they do not engage in a renegotiation of the convention-protocol system. Their option of last resort is to withdraw from the treaties, which is permissible by giving a year’s notice, and to dispense with other preventative obligations such as those developed by the European Court of Human Rights. If it has not already arrived, that point may well be reached if the British courts were to strike down the Sunak Government’s Rwanda plan once again. The anti-immigration public mood in Europe may mean that Sunak faces less opposition and could even attract a group of other states globally to begin moving in the same direction. If that happens, we may see an end to the postwar asylum framework, perhaps not before time.
Dr. Prakash Shah is a Reader in Culture and Law at Queen Mary University of London.